Last week, I discussed Cornell University President David J. Skorton’s response to Student Assembly Resolution 44, which proposes to revise Cornell’s non-discrimination policy to restrict the ability of student groups to require that their voting members and leaders actually share the group’s core beliefs. The resolution, which passed the Student Assembly by a narrow vote back in February, requires Skorton’s approval before final adoption. However, as he did when presented with a similar resolution in 2009 (after being pressed by FIRE), Skorton declined to assent to the resolution without requesting changes and commenting further. Now that a few days have passed and FIRE has had time to fully examine Skorton’s thorough response to the Student Assembly, available in full here, it’s worth contemplating what the practical effects of Skorton’s response will likely be on campus.

Examined more closely, Skorton’s response is a classic instance of Solomonic compromise. Unfortunately, the rights of religious student groups will likely be threatened again in the future as a result.

On the one hand, Skorton rejects Resolution 44’s expansion of classes of individuals protected by the school’s non-discrimination policy as unnecessary. The resolution would ban student groups from considering "actual or perceived age, ancestry or ethnicity, color, creed, disability, gender, gender identity or expression, height, immigration or citizenship status, marital status, national origin, race, religion, religious practice, sexual orientation, socioeconomic status, veteran status or weight" when "determining full rights of membership, which shall include, but is not limited to, voting for, seeking, and holding positions within the [independent organization]." (The boldface material represents proposed additions to current policy.)

Skorton writes:

Cornell’s current policy dealing with non-discrimination is broad and effective: it bans all forms of legally prohibited discrimination in all University educational programs and activities and employment. This non-discrimination policy was adopted by the highest body of the University, the Cornell Board of Trustees, and has university-wide application in all policy related documents and agreements. The current policy prominently appears in university catalogues, brochures, handbooks, other policy documents, contracts and agreements. And several university offices make it their business to enforce the policy including the Offices of Workforce Diversity and Inclusion, University Counsel, Human Resources, and Student and Academic Services.

Since the Trustees-approved policy already encompasses all categories of "legally prohibited" discrimination, it is not clear to me (and presumably would not be clear to the Board) why the SA wishes to add several other categories of non-discrimination. The University is not empowered to formulate public policy; and should not add prohibitions that exceed those adopted by authorized federal, state, and local bodies.

The SA’s proposal to expand the categories of non-discrimination in the IO agreement — by adding "height," "ancestry," "immigration status," "religious practice," "socioeconomic status," and "weight" — extends well beyond the Trustees-approved policy.* So, I do not accept this aspect of the SA resolution, and consequently I ask the SA to reconsider it.

Fair enough; Skorton is essentially asking the Student Assembly to adhere to the categories of protected classes already established by the law. This is a reasonable request—barring real evidence of instances of invidious discrimination against members of these protected classes on the basis of such membership, why allow the Student Assembly to fashion new protected classes out of whole cloth? Members of the Student Assembly who voted in favor of Resolution 44 would presumably argue that the Chi Alpha Christian Fellowship’s 2009 decision to remove a student leader from his leadership position after the student decided he no longer shared Chi Alpha’s understanding of homosexuality is sufficient evidence that these new classes are necessary. But as I’ve explained at length before, Chi Alpha’s requirement that its student leaders actually share the group’s beliefs isn’t discrimination; rather, it’s entirely reasonable and completely in line with the First Amendment’s longstanding protection of freedom of expressive association.

What’s more, this aspect of Skorton’s response illustrates his understanding of Cornell’s relationship with the law generally and constitutional jurisprudence more specifically, and merits a closer look. Skorton first argues that Cornell is an entirely private university, not bound by judicial interpretations of the First Amendment:

It is important, however, to understand that "constitutional" considerations do not control how the policy issues raised by the SA proposal should be resolved. As Cornell University Counsel James Mingle advises, the U.S. Constitution constrains governments (at the federal, state, and local levels) regarding certain governmental actions that affect individuals and entities. Private corporations and universities — and Cornell University is both — are not compelled by law to recognize or extend constitutional rights to individuals or organizations.

By preemptively declaring Cornell to be an entirely private university, Skorton is conveniently ignoring the fact that Cornell contains both public and private colleges in a unique arrangement. As I pointed out in FIRE’s most recent letter to Skorton, sent last month, this hybrid status means that Cornell should be bound by the Supreme Court’s rulings regarding student rights on campus:

Given Cornell’s unique hybrid status as a part-private, part-public institution, FIRE strongly believes that these rulings and others by the Court, which make clear the essentiality of robust First Amendment protections on college and university campuses, apply in full at Cornell. As you know, though many of the colleges at Cornell are considered to be private, at least four colleges are "statutory colleges" under New York state law and receive funding from the state of New York. Moreover, a number of public officials, including the Governor of the State of New York, serve as ex officio members of Cornell’s Board of Trustees. Cornell has a significant public aspect to its governance. Indeed, Cornell has been classified as a state agency for the purposes of certain state regulations.

Skorton rejects this argument out of hand. That’s predictable, if disappointing (and, I think, incorrect), because an acknowledgment by Skorton that Cornell is at least in part a public university and thus should be treated as other public universities would have meant that the school would be sacrificing the significant autonomy and independence it has carved out for itself. While part-public, Cornell is also part-private, and it is of course that latter half that the school wishes to emphasize. Again, fair enough; we’ll leave this fight for another day.

But what’s most interesting is what comes next, because while Skorton insists that Cornell is free to do as it pleases when it comes to constitutional law, he acknowledges that his university—like most private universities—relies on judicial understandings of legal concepts and rights to inform its own practices. Skorton writes:

Private corporations and universities — and Cornell University is both — are not compelled by law to recognize or extend constitutional rights to individuals or organizations. However, many private universities, including Cornell, typically have chosen to do so as a matter of policy.

When considering the basis and boundaries of such rights, private universities typically look to clearly established constitutional law (as developed by the courts) for guidance. And when determining how such constitutionally recognized rights as freedoms of speech, press, association, and religion should inform and/or be incorporated into university policy documents, private universities (including Cornell) are cognizant, as they should be, of their own First Amendment right as a private university of academic autonomy to determine appropriate educational policy.

This reliance is part of the reason why FIRE rates the speech policies of private universities that make explicit promises of free expression to their students in our Spotlight database of speech codes. Skorton doesn’t explicitly acknowledge as much, but it’s safe to assume that a significant part of the reason Cornell and other private universities "typically look to clearly established constitutional law (as developed by the courts) for guidance" is because having been promised freedom of expression, students and professors at private schools expect that they’ll enjoy the same rights as their counterparts at public universities. This is certainly a reasonable expectation, as more than anything else in our society, constitutional jurisprudence shapes normative understandings of what precisely we mean when we talk about "rights." So if a private university broadly promises students freedom of expression, it’s reasonable for that student to assume that he or she will enjoy those rights as defined by courts and commonly understood by American citizens.

Skorton then proceeds to address the crux of the resolution: its attempt to prevent groups like Chi Alpha from requiring voting members and leaders to share the group’s worldview. After claiming that there’s a tension between Cornell’s "non-discrimination provision regarding sexual orientation on the one hand, and the leadership practices of some student religious organizations which proclaim that homosexual conduct is inimical to the group’s genuinely held religious beliefs," Skorton recognizes that "First Amendment principles protect even offensive speech and, within certain limits, recognize the right of private associations to tailor their membership and leadership practices." But this doesn’t end the matter for him, as it should. Instead, using the wriggle room he’s granted himself by deeming Cornell an exclusively private institution, and thus not bound by the First Amendment, Skorton proceeds to halve the proverbial baby:

Consequently, my judgment is that the following approach is most appropriate for Cornell regarding membership and leadership practices of independent organizations: (1) The current policy embodied in the IO agreement should be retained: student organizations, without exception, are required to comply with the university’s non-discrimination policy in all respects when determining their membership. (2) In its leadership practices, religious organizations may continue to limit officer posts to those members who conform to centrally and genuinely held religious beliefs of the organization; thus, the group’s legally recognized prerogative to engage in "religious discrimination" in this limited regard is permitted to take precedence over the policy against sexual orientation discrimination.

With respect to entitlement for funding, however, I believe it would be appropriate for the SA, in the exercise of its delegated authority to administer and allocate SAF funds, to consider imposing more rigorous standards for all student organizations. The SA may determine following further deliberation to condition qualification for SAF subsidies on compliance with the non-discrimination policy without exception (i.e. regarding both membership and leadership practices). Thus, student religious organizations that choose not to comply with the sexual orientation provision would not be eligible for SAF funding, but would nevertheless continue to have access to university space and services as a recognized IO. This issue deserves further thoughtful review by the SA.

In other words, Skorton is suggesting to the Student Assembly that religious student groups—even though they have a "legally recognized prerogative" to engage in what Skorton disappointingly frames as "religious discrimination"—should nevertheless be rendered second-class citizens and stripped of funding if they don’t conform to the Student Assembly’s impossibly cramped understanding of freedom of association and its impossibly broad definition of "discrimination."

Like the halved baby, this compromise would please neither stakeholder. The Student Assembly would be forced to recognize that it cannot entirely bulldoze the freedom of association religious student groups should reasonably expect to enjoy at a school that promises its students freedom of expression. But religious student groups would still find themselves pretty well flattened, denied both funding and the basic recognition that they aren’t engaged in the kind of invidious discrimination that non-discrimination policies are supposed to prevent. (By the Student Assembly’s expansive definition of "discrimination," I suppose high school seniors denied admission at Cornell could accuse the school’s admissions office of discrimination, too.) Because Skorton’s letter is intended to provide guidance to next year’s Student Assembly, if and when it takes up this issue again, religious student groups on campus have reason to worry.

As a final note, it’s worth noting that Skorton acknowledges that the Supreme Court’s forthcoming decision in Christian Legal Society v. Martinez (a case for which FIRE submitted an amici brief) may have some bearing on the Student Assembly’s course of action. He concludes his letter by writing:

We note that the U.S. Supreme Court is considering a case (during the current spring 2010 term) involving a public university’s imposition of sexual orientation non-discrimination policy that a student religious organization claims conflicts with its free association rights to choose its own leaders and select its voting members. Although as a unit under the aegis of a private university the SA is not legally obligated to follow constitutional law court decisions, the Supreme Court’s airing of the competing policy interests—and judgment as to which should prevail—may help inform the SA’s discussion as it reconsiders the elements of its resolution.

This is again a useful and welcome recognition of the fact that private universities look to the high court for guidance in determining the contours of their own promises of free expression to students. However, and perhaps this is overly cynical of me, I can’t help but feel as though Skorton has set up a "tails I win, heads you lose" situation here for religious student groups. Because while he grants that the decision "may help inform the SA’s discussion as it reconsiders the elements of its resolution," he nevertheless makes sure to argue once more that Cornell won’t be bound by the decision if they don’t like the way it comes out ("as a unit under the aegis of a private university the SA is not legally obligated to follow constitutional law court decisions").

Religious student groups—and those students who support the fundamental freedom of expressive association—should begin to prepare for the coming debate on Cornell’s campus next fall. President Skorton’s letter leaves troubling questions unanswered about the university’s support for freedom of association.